A Dog Walks Into A Bar . . .

“Persuaded, paraded, inebriated, and down
Still aware of everything life carries on without
‘Cause there’s one too many faces with dollar sign smiles”. Whiskey Bottle, Uncle Tupelo

For decades, parody and trademarks have had a fraught relationship, particularly when it come to the interface between human brands and products for man’s best friend. Back in the 90s, the luxury chocolate maker Godiva sued over a dog treat named Dogiva. And some years later, the luxury clothier and luggage maker Louis Vuitton sued over a brand of dog treats called Chewy Vuitton.

Last week, the latest decision in this line of cases came down, finding that a dog toy shaped like the iconic Jack Daniel’s whisky bottle and bearing both the name Bad Spaniels and the scatological slogan “Old No. 2” did not infringe the venerable bourbon’s trademark rights in the Jack Daniel’s name, the square bottle shape, the black and white labeling, and the slogan “Old No. 7.”

The case turned on whether Bad Spaniels name and bottle were a transformative expressive homage to Black Jack and therefore protected by the First Amendment and its stringent expressly misleading standard, or whether it just was plain old trademark use, in which case the lesser likelihood of confusion standard applies.

The judge came down on the side of parody and free expression. Acknowledging that the Bad Spaniels name, motto, and packaging were a far cry from the Mona Lisa, the judge nonetheless concluded that the canine toy maker had produced an expressive work that did not warrant being relegated to the trademark doghouse. The court explained that “[a] work need not be the expressive equal of Anna Karenina or Citizen Kane” to be considered expressive; nor is a work “rendered non-expressive simply because it sold commercially.”

The decision is sure to add to the ongoing debate on whether punsters deserve punishment when they parody a famous brand not through a cartoon or story but by putting out a product with a humorous twist.

So, when happy hour rolls around Fido, Spot, Snoopy, and Scooby Doo can enjoy their own plastic libation as their best friends break out the Jack and Ginger or have their Tennessee sippin’ whiskey nice and neat. And in these days of Work at Home and sheltering-in-place, it’s always five o’clock somewhere.

The case is VIP Prods. LLC v. Jack Daniel’s Properties, Inc., No. 18-16012(9th Cir. Mar. 31, 2020).

Quote of the day: “Basically, I’m for anything that gets you through the night – be it prayer, tranquilizers or a bottle of Jack Daniels.” Frank Sinatra

Leave a comment

Filed under Uncategorized

The Song Goes On Forever; Can the Copyright End?

“Standin’ on the highway with my coffee cup
A-wonderin’ who was gonna pick me up
I had my hopes up high, I never thought that I
Would ever wonder why I ever said good-by
I had my hopes up high” I Had My Hopes Up High music and lyrics by Joe Ely

Joe Ely - Letter to Laredo - Amazon.com Music

The path of a professional musician is rocky and strewn with obstacles. Many struggle to find an audience, to earn a living, to be picked up by a major record label. But even for those who make it, the road is still precarious. One reason is in the devils bargain they had to make to get their first recording contract.

The term “quid pro quo” had gone viral until a real virus took hold of our collective attention. But “quid pro quo” applies to more than just phone calls between heads of state. For most emerging singer/songwriters, the quid pro quo for getting a record deal was this: the record company demanded that the artist assign her copyrights to the label. And that demand came in the form of an offer the artists couldn’t refuse–either assign the copyrights or no deal–a classic case of one party to a deal holding all the cards and having all the leverage.

Congress, back in the day when bipartisanship and legislative compromise weren’t dirty words, recognized the artists’s dilemma and provided a fix. The fix is by no means quick. But is is real and potentially lucrative–the 1976 revision of the Copyright Act, Congress included a “termination right” so that artists like Joe Ely pictured above, Bruce Springsteen, Tom Petty, and others who had signed-away their copyrights at the start of their recording careers can take back their rights, lock, stock and barrel, after 35 years.

But, as Ringo sang, “it don’t come easy.” Artists must follow strict procedures about the timing and content of their termination notices. And as might be expected, the record companies, having given an artist a “big advance,” (like The Boss gets at the end of Rosalita), aren’t exactly keen to see the valuable copyrights revert to an artist whose career the company launched and helped sustain for decades. And so, some of the current corporate copyright holders have vowed not to give up without a fight and have refused to honor termination requests from Joe Ely and many others.

Mr. Ely, however, along with English musician John Waite, “won’t back down,” as Tom Petty sang. They are lead plaintiffs in a class action lawsuit against UMG, a major music corporation. In the lawsuit, Ely and Waite argue that UMG has not good reason or legal basis for rejecting their termination notices.

UMG, for its part, argues that the musicians never had a termination right because their original recording contracts included language that called the musician’s songs “works for hire.” So technically, UMG argues, artists like Mr. Ely never owned the copyrights in the songs they wrote and recorded while under contract to the recording companies. They further argue that the musicians should have sued over the “work for hire” issue decades ago, within three years of signing their contracts, so that the statute of limitations applies and bars their current claims.

Earlier this week, a federal judge rejected UMG’s theory, writing that denying the artists’ their termination right based on things they did or didn’t do over thirty years ago “at a time during which the artist and recording company may still have disparate levels of bargaining power — would thwart Congress’s intent and eviscerate the right itself.”

So the case continues on to a trial to determine whether Ely and the rest properly exercised their right of termination and can regain control of their copyrights.

The case is: Waite et al. v. UMG Recordings Inc. et al., case number 1:19-cv-01091, in the U.S. District Court for the Southern District of New York.

One of Joe Ely’s Texas Troubadour compatriots, Robert Earl Keen, sings “The Road Goes On Forever and The Party Never Ends.” This case will determine whether a record company’s party–it’s hold on copyrights it insisted on owning decades ago when it had superior bargaining power, will go on forever, or at least until the copyright expires many years in the future. The recent ruling shooting down UMG’s first line of defense leaves Mr. Ely and the other Plaintiffs with “their hopes up high.”

Quote of the day: “What have you done to me? Can’t you remove the spell you have cast over me?” Johannes Brahms

Leave a comment

Filed under Uncategorized

Cooped Up Case for Cooped Up Times

“Take a little tip from me. Stay away from my chicken house.” Stay Away From My Chicken House by Gene Autry

No need to be chicken about copying in poultry feeder case ...

Entering our third week of staying at home, we look for connection from any quarter. Yesterday I found it in the form of a new trademark decision from the Fourth Circuit about chicken feeders. The Court of Appeals affirmed a lower court decision that nixed trademark protection for the shapes and color of the chicken feeder shown above on the left. The plaintiff had claimed that the configuration and red color scheme of its bird feeder had acquired trademark significance through years of commercial success. There was no doubt that the plaintiff’s feeder was popular among poultry raisers. And the defendant’s feeder (on the right) looked like a dead ringer for the plaintiff’s.

So why did the plaintiff’s trademark claim flounder and flail like a, well, the proverbial chicken with its head cut off? The problem for the plaintiff was it’s patents. Yes, product configurations and color schemes can theoretically attain trademark status through long use, large sales, and extensive advertising, especially if the advertising verbally or visually highlights the shape, features, or colors without touting their utility. But even if these measures have worked, even if consumers recognize a product’s shape, features, or colors as source indicators, i.e., trademarks, the law won’t extend trademark protection to features or shapes that are essential to the product’s function or purpose.

And here, the features and red color that the plaintiff claimed as trademarks were also covered by the plaintiff’s utility patents—strong evidence of their functionality. Indeed, the patents showed that the product shape allowed birds to feed more easily while the color red attracted them to their meals. As the court recognized, it is fundamentally unfair for a patent owner to convert the limited patent monopoly for useful features into a perpetual trademark monopoly, thereby depriving rivals of useful features needed to compete effectively.

The case is CTB Inc. v. Hog Slat Inc., case number 18-2107, in the U.S. Court of Appeals for the Fourth Circuit.

So, how does a case about chicken feeders provide meaning and connection in these days of isolation? Well, the first case I worked on as a fledgling trademark lawyer was about a chicken feeder. Early in the litigation, my fellow associate and I drafted up a scathing letter to the other side over some perceived deficiency. We loaded the correspondence with all the invective and indignation we could muster. The recipient happened to be the boyfriend of our mentor, and he worked for the rival firm across the street. He was an excellent lawyer and a wonderful guy, and he used his reply to school us neophytes about civility and effective advocacy, characterizing our screed for its “intemperate tone.” Of course, he cc’d our mentor, his girlfriend. From that day on my colleague and I became known throughout the firm as “The Intemperate Tones.” Good band name, bad nickname for young lawyers or lawyers of any age.

Moral of this post, don’t be so impressed with your own heated rhetoric that you lose sight of the ultimate goal, resolving disputes that counsel should be able to resolve cooperatively and failing that persuading not alienating the judge. Resist the urge to strut like a Rooster, lest you end up like the birds scrambling to feast at these feeders–served up on a plate for a judicial rebuke.

Quote of the Day: “I haven’t checked, but I highly suspect that chickens evolved from an egg-laying ancestor, which would mean that there were, in fact, eggs before there were chickens. Genius.” Ta-Nehisi Coates

Leave a comment

Filed under Uncategorized

Slam Dunk Win for NBA Video Game Accused of Tattoo Copyright Infringement

“I acquired a weakness over the weekend for a guy with a gold tattoo.” “New Tattoo” music and lyrics by Ana Egge and Maryann Kranis

Norwegian teen tattoos McDonald's receipt on his arm, confirms Big ...

It’s a generational thing, I know, but I just don’t get tattoos. Back in the day, they were associated with grifters, carnies, and drunken sailors. Popeye had one on his forearm. Mighty Mouse did not.

Recently, however, I got an anthropology lesson on tattoos and their cultural significance. I learned that “tattoos have been part of human expression for thousands of years,” and that “modern tattoos reflect the personal expression of the person bearing the tattoo and are intended for that purpose.”

That lesson came not from a book or article, but from expert testimony in a court decision involving the tattoos of none other than LeBron James. The issue was whether the maker of the video game NBA 2K infringed the copyrights in the tattoos of Mr. James and two other NBA stars when the the trio were included as video game figures, in NBA 2K, tattoos and all.

First, some basics. Yes, tattoos are pictorial works subject to copyright. And yes, absent a written agreement between the tattoo artist and the client, the artist owns the tattoo copyright, which gives the artist the right to control when and how the tattoo is reproduced. So in theory, including Mr. James’s likeness with his tattoos could implicate the tattoo artist’s copyright.

In this case, the artist had granted an exclusive license to the copyright to the plaintiff, a company formed primarily to enforce the copyright against the video game company and others who similarly included likenesses of tattooed stars in commercial products such as video games.

The court of law in this case took a very dim view of the plaintiff’s efforts to profit from the tattoos’ presence in a virtual court of basketball. In fact, the judge agreed with all of defenses:

First, U.S. District Judge Laura Taylor Swain ruled that there was no copyright infringement because the tattoos in question were not “substantially similar” to the copyrighted tattoos. The virtual tattoos were a fraction of the actual tattoos in size and were barely visible, appearing only fleetingly on moving figures who themselves were part of a larger group of moving figures in the video game as its being played.

Second, the court ruled that the artists had granted LeBron and the others implied licenses to allow the tattoos to be publicly displayed, including in video games. “The tattooists necessarily granted the players nonexclusive licenses to use the tattoos as part of their likenesses,” Judge Swain wrote. “The players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the tattoos as elements of their likenesses.”

Finally, Judge Swain concluded that including the tattoos in the virtual likenesses of LeBron and others was “fair use.” She concluded the company had made a “transformative use” of the tattoos, noting: “The tattoos were originally created as a means for the players to express themselves through body art,” Judge Swain wrote. “Defendants reproduced the tattoos in the video game in order to most accurately depict the players.”

Judge Swain was also swayed by a survey conducted by Dr. Deborah Jay that showed that consumers do not buy NBA 2K for the tattoos on LeBron James’s likeness.

The full court press of defenses thus produced a blowout win for NBA 2K and a stinging loss for the plaintiff.

As for me, I still may not totally get cultural phenomenon that is the modern tattoo. But guided by the expert testimony in this case about the history and significance of tattoos across the millennia, I can finally accept that my aversion and skepticism were narrow-minded, misguided, and worthy of an OK BOOMER retort.

The case is Solid Oak Sketches LLC v. Visual Concepts LLC et al., case number 1:16-cv-00724, in the U.S. District Court for the Southern District of New York.

QOUTE OF THE DAY: “Show me a man with a tattoo and I’ll show you a man with an interesting past.”
― Jack London

Leave a comment

Filed under Uncategorized

TM Suit by BRIZZY against VIZZY Lacks Sparkle, Court Rules in Denying P.I. Motion

“I’m forever blowing bubbles. Pretty bubbles in the air.” I’m Forever Blowing Bubbles, music by John Kellete, lyrics credited to Jean Kenbrovin

Image result for brizzy hard seltzer

“Hard seltzer” has been one of the brightest product categories in a declining market for alcoholic beverages. As reported by Bloomberg, “Alcohol drinkers are becoming more and more concerned about health and wellness, and are becoming more involved in mindful drinking. Hard seltzers are meeting these consumer needs.”

What is hard seltzer? It’s carbonated water infused with 5% alcohol and flavorings. It has fewer carbs and calories than beer. Hard seltzer drinkers tend to be younger, have higher incomes and skew more female than traditional beer drinkers, according to Bloomberg.

The man generally credited for sparking the hard seltzer craze is Von Mandl, a wine maker from Canada. His company’s WHITE CLAW hard seltzer currently accounts for 55%, with annual sales hovering at $1.6 billion. WHITE CLAW hard seltzer has been such a success that Mandl has been able to devote attention to his first passion, wine making, turning out bottles that sell for upwards of $250.

With such a lucrative and expanding market, it was only a matter of time until hard seltzer bubbled up into a trademark dispute. In a decision handed down yesterday, a Texas federal judge refused to block mega beer-maker Molson-Coors from selling its new VIZZY brand hard seltzer, scheduled to hit the market this month. The suit was brought by a much smaller hard seltzer company that has been selling the trendy beer alternative under its federally registered BRIZZY trademark.

With the products poised to compete head to head in the growing hard seltzer marketplace, the only real issue for the court to decide was whether Molson-Coor’s new brand VIZZY was too close for comfort to prior mark BRIZZY –stated in legal terms, are BRIZZY and VIZZY so similar that an appreciable number of ordinary consumers are likely to be confused?

In denying BRIZZY’s motion for a preliminary injunction–a temporary ban on VIZZY sales while the case goes ahead to trial–the judge found that “Plaintiff cannot realistically hope that by obtaining a mark based on and characterized dominantly by one word (‘fizzy’), it can prevent competitors from doing the same.” Miller-Coors swayed the judge with evidence of many other trademarks on the market derived from the word “fizzy.” The court was further persuaded that confusion is unlikely because the parties’ cans look noticeably different. Even though the court recognized that “V” and “B” are “easily confused,” it agreed with Molson-Coors that the “logos, font, coloring, cans, and packaging could not be more different.”

Law 360 reported today that the plaintiff intends to move forward with the case and is seeking a permanent injunction and unspecified damages.

The case is Future Proof Brands LLC v. Molson Coors Beverage Co. and MillerCoors, case number 1:20-cv-00144, in the U.S. District Court for the Western District of Texas.

Stay tuned to see whether this case will yet lead to a substantial verdict in favor of the David against an industry Goliath or whether BRIZZY will again fall flat. Until then, stay thirsty for trademarks, my friends. And drink responsibly.

Quote of the day: “The water in a vessel is sparkling; the water in the sea is dark. The small truth has words which are clear; the great truth has great silence.” Rabindranath Tagore

Leave a comment

Filed under Uncategorized

Music Is Love

“Everybody’s saying it–music is love.” Music is Love” music and lyrics by David Crosby, from the album “If I Could Only Remember My Name.”

Brown and Black Gramophone

On a grey day, when sheltering in place begins to wear thin, a break from trademark themes seems in order. Trying to find the silver lining behind this dark cloud of Corona Virus may not be easy. But linings of silver are there to be discovered, whether its the chance to work side-by-side with one’s significant other and to discover what exactly it is that they actually do all day, to the opportunity to multi-task as dedicated work-at-homer and day-care provider, or one’s transformation from restaurant patron to intrepid pantry explorer–those dried beans were never going to hop into the Instant Pot themselves.

Among the few changes that have not been unpleasant has been the explosion of live musical performances being posted on social media and You Tube by artists and musicians across the musical spectrum. Neil Young shared an intimate mini concerts from his fireside, filled with gems and rarities. Willie Nelson and friends recast their cancelled Luck Reunion as an online musicthon. And many other artists and venues have followed suit, often tying their impromptu concerts with to a good cause, such as supporting fellow musicians or the dedicated staffs at venues and concert halls.

For the Internet concert curious, here are some lists complied by leading music publications to help you find tunes to ease a troubled mind:





So while music halls from Nashville to New York City remained shuttered, there are still plenty of ways to support live music, even from the couch. Perhaps you’ll make some new discoveries or reconnect with a favorite artist. Just a few years ago, none of this would have been possible. Today, our digital connectivity can help keep us connected with the healing power of music.

No Softrights post would be complete without at least some mention of intellectual property. So since this one concerns music, remember, artists make their living from their copyrights. So respect the artists and respect their creations by being a legit consumer–subscribe to a digital music service, buy CDs and other merchandise, and when Covid is history, buy a concert ticket, go to a festival, and enjoy music the way it was intended to be heard–live.

Quote of the day: “I think that live music is something that the Internet can never kill.” Jim James

Leave a comment

Filed under Uncategorized

Fools Rush In To Cash In On Circle R

“Wise men say only fools rush in.” Can’t Help Falling In Love” music and lyrics by Haley Reinhart

Image result for gold rush

When confronting a global pandemic, it seems like folks would have better things to worry about than dreaming up schemes to monetize the panic part of pandemic. Yet predictably within days of Corona Virus and Covid-19 becoming household words, the US Trademark Office was flooded with applications for phrases such as CLASS OF COVID-19 for sweatshirts, COVID IMMUNE for wristbands, COVID-19 SURVISOR for t-shirts, and COVID KIDS for children’s clothing.

Like most of their COVID brethren, these applications were filed based on the applicant’s professed “bona fide intent to use” the mark in commerce. That’s a fancy legal term that means that the application must be more than a pipe dream, much more in fact. Trademark law demands that aspiring trademark owners be able to back up their aspirations with real commercial evidence, like having a prototype, investing in equipment, or having a strategic plan.

And before the Trademark Office will issue a certificate of registration with the impressive ribbon and official seal, the applicant must submit evidence that it has actually selling good or offering services under its trademark. These can’t be mere token sales to friends and family; they but must be genuine commercial transactions. Otherwise, if the applicant filed first and tried to develop a product or business later or relied on trumped up sales, the resulting registration can be challenged as having been void from the start.

So, many of these Covid trademark hopefuls are likely due for a rude awakening. Not only will the market for their novelty products run its course along with the novel virus, but the money they spent on these trademark applications likely would have been better spent on other things, like toilet paper and hand sanitizer.

Quote of the day: “In the middle of difficulty lies opportunity.” Albert Einstein

Leave a comment

Filed under Uncategorized

Too Good To Be True: A Trade Dress Saga

“In my mind I see a mirage on the wall. But unfortunately it’s not there at all.” Mirage, by Iron Butterfly

I don’t put much stock in mirages. They may be good plot devices for movies set in the Sahara or a Bugs Bunny cartoon. But in the real world, I’ve never come close to experiencing the confluence of dehydration and desperation thought to produce the hallucinatory visions depicted in film and in literature.

Then came Covid-19 and sheltering in place. Within a few short days, things shifted from well-stocked supermarket shelves to the “new normal” where many staples have been in short supply. Not wanting the cupboard to go bare, we found an organic ranch in California that still had plenty of beef, lamb, and pork and would ship to our door.

I’ve long believed the adage “never shop for groceries on an empty stomach.” I’m here to report that the advice holds doubly true when ordering meat from the Internet. With a few clicks of the mouse, we had purchased approximately an entire side o’beef, or so it seemed from the price tag.

A few days later, UPS delivered a heavy box market “PERISHABLE, OPEN IMMEDIATELY.” After puzzling over what might be inside, it dawned on me that we now HAVE THE MEAT! I found the nearest sharp object and tore open the box. Reaching inside, I began to remove not the prime-aged cuts I’d been craving, but plastic white tubes with red lettering–one after the other, like circus clowns emerging from a tiny car.

This is where the mirage theme comes in. My mind’s eye saw the white and red tubes not for what they were–15 one pound packages of ground beef that rounded out our order. I saw what I wished them to be–tantalizing cylinders of Taylor Pork Roll (pictured above), a rare and unusual Spam-like meat product that comes from only one place on the planet–Trenton, New Jersey, my hometown. I had practically been weaned on the savory blend of pork and spices that Trentonians traditionally grilled or fried, topped with American cheese, and served on a fresh, crust Kaiser roll with mustard.

For an instant, I was thrilled. Then doubt began to seep in. Why would a premium organic beef purveyor have commingled 15 Taylor Pork Roll rolls among the T-bones, filets, and sirloins? The rock-frozen pork roll may be cheap, but not cheaper than dry ice!

But my initial belief that I’d received a motherload of the very pork roll brand my mother once served-up was no mirage. It was a by-product of the facet of trademarks called “trade dress.” You see, more than words and logos can function as a brand. Trademark protection also can extend to the appearance of packaging itself–the combination of colors, shape, and overall “look and feel” that can identify a product’s source as strongly as its name. Prime examples include the COCA COLA bottle and the Cracker Jack Box. In most cases, companies must earn trademark protection for their product packaging through five years or more of sales and advertising. They must prove what’s known as “secondary meaning,” which means that the trade dress has acquired brand significance among relevant consumers.

The Taylor Pork Roll package has all the hallmarks of protecible trade dress. The company has been selling its product in the same white and red packaging for decades while earning a devoted fan base of New Jerseyans that have migrated across the land and globe.

Considering the striking similarity between the Taylor trade dress and the ground beef now loaded into every nook and cranny of our freezer, my mirage moment is both understandable and forgivable. I’m sure I’ll be enjoying these meal-size packets of quality ground beef for weeks to come, and hopefully long after sheltering-in-place gives way to barbecuing with friends and family. And I’m equally sure that after shoppers pillage the supermarket shelves of dairy, groceries, and all other manner of comestibles, there’ll probably still be a few packages of pork roll left. And every time I take a package of that ground beef out of the freezer to thaw, I’ll smile to myself and think of the white and red Taylor Pork Roll trade dress.

Quote of the Day: “Adversity is a mirage. People, situations, and relationships sometimes change for the worst but inevitably clear a path for far better replacements. The continued journey will always find bliss.”
― Carl Henegan

Leave a comment

Filed under Uncategorized

Blowin' In the Wind

“Black clouds overhead, old man says looks like rain. Thieves’ Road winds to the Black Hills sign.” Pale Sun, Cowboy Junkies

Every day these days feels like it has a black could overhead. New revelations, new worries. But even with so much uncertainty in the air, we trademark junkies can find something to write about other than panic and pandemic.

I was out for a brief dose of sun and fresh air, walking along deserted streets with my rambunctious dog, when I came across two bright orange road signs. Both were broken, crumpled, bent over to the ground. Could the Covid-19 be so potent as to level even these rugged devices built to withstand heavy winds and other physical adversities?

As my dog began dragging me to the nearest shrub for some satisfying sniffing (by him, not me), I noticed that the crippled road signs each had twin plastic orange springs at the base. And instantly, I recognized the source. These were signs made by TrafFix, the company that years ago had famously sued to protect its orange dual-spring design as a trademark. The case was TrafFix Devices, Inc. v. Marketing Displays, Inc. It made it all the way to the U.S. Supreme Court, where TrafFix’s trademark hopes were dashed by the Court’s unanimous decision. The Court held that no matter how recognizable those dual-springs might be, (as they were to me) trademark law can’t protect them because they are functional features whose main purpose was bolstering street signs against the wind and elements, not serving as a brand. The Achilles Heel for TrafFix;s trademark claim was another form of intellectual property–a utility patent. The patent covered the very characteristic that TrafFix sought to protect by trademark, leading the Supreme Court to conclude that giving TrafFix trademark rights on top of its patent would unfairly give TrafFix a perpetual monopoly on a useful feature and put other companies at a competitive disadvantage.

The TrafFix case thus joined a body of famous trademark cases that, like modern celebrities such as Kanye, Madonna, J-Lo, and Shakira, are known simply by one name. (I’ll cover others in future posts.)

Pulling my dog away from the felled road signs, their “Caution” warnings flattened by some mysterious force, I glanced up and saw a trio of mature cherry trees in full bloom across the street. That they had been planted in front of a funeral home did not dim the thrill of seeing the delicate, ephemeral pale pink blossoms. We may not be able to go to see the annual wonder of cherry blossoms draping the tidal basin and Jefferson Memorial like a gauze tapestry, we know that Spring is here, even if a few TrafFix springs, and ourselves, have seen better days.

Quote of the day: “I don’t think people are going to talk in the future. They’re going to communicate through eye contact, body language, emojis, signs.” Kanye

Leave a comment

Filed under Uncategorized

Does Endless Summer Have Two Rs?

“Let’s go surfin’ now, everybody’s learning how, come on on safari with me.” Surfin’ Safari, music and lyrics by Brian Wilson

Surfing has strangely been on my mind lately. I’ve been reading the book Barbarian Days, A Surfing Life by William Finnegan. In it, Mr. Finnegan chronicles his early fascination with the sport, sparked not only by his family’s proximity to surfing meccas in Southern California and Hawaii, but also by the surf culture of the early-to-mid sixties, indelibly captured by the guitar driven surf music of Dick Dale and The Ventures and in films such as Beach Blanket Bingo, Gidget, and Ride the Wild Surf. I grew up during in those days, only an hour or so drive “down” the Jersey Shore. And though my sporting interests were rooted in terra firma, I recall my family’s first visit to Long Beach Island, a sliver of a barrier island north of Atlantic City. After a day in the sun, the five of us sat on logs around a small fire and listened to a local cover band tear through a credible version of the ultimate surf instrumental, Wipeout. I fell asleep that evening with visions of taking drum lessons and then mesmerizing my classmates with a virtuoso performance of Wipeout’s iconic drum solo. But when school rolled around that September, I was given a Bundy clarinet, began free lessons, and was forever consigned to the woodwind section, several strata below the rarefied cool of brass and percussion.

Around that time, in 1966, a bunch of us kids walked downtown to see a film called The Endless Summer. Produced and directed by Bruce Brown, the movie followed two surfers on a surfing trip around the world in search of “the perfect wave.” Again, I was a city kid who had as much contact with surfing and surf culture as I had with bullfighting. Yet the film’s exotic locations and thrilling action photography captivated me like no movie before or since.

So, with surfing and The Endless Summer on my mind, I was surprised by the odd coincidence of seeing The Endless Summer in today’s intellectual property news. According to IP 360, “The filmmaker behind “The Endless Summer” is suing Nike and Foot Locker for trademark infringement, alleging that an ad campaign that ran last year used the movie’s title and graphics from its poster to sell shoes and other apparel.” In the Complaint filed in, where else, Los Angeles, the filmmaker’s company alleges not only that The Endless Summer is “considered to be one of the most influential films to depict surfing and the surfing lifestyle,” but also that “The Endless Summer and the images emblematic of the Endless Summer film poster have become famous and distinctive brands.” The Complaint goes on to allege that the Foot Locker/Nike “Endless Summer” ads confused consumers into thinking that the filmmakers had approved the campaign. The question posed by the case is this: Does The Endless Summer have to Rs–the “r” in summer and the “Circle R”–the registered trademark symbol? And, yes, the filmmakers do own a federal registration for THE ENDLESS SUMMER. The case is Bruce Brown Films LLC v. Foot Locker Inc. et al., case number 2:20-cv-02553, in the U.S. District Court for the Central District of California.

The Endless Summer has been on my mind for another reason. In 2003, Bruce Brown’s son put out a sequel to The Endless Summer called Step Into Liquid. Naturally, I had to see it. And I did–during the aftermath of a massive storm that knocked-out power in D.C. for nearly a week, leaving us unmoored and insecure. I’d been thinking about that small disruption during our current, more dire, national public health crisis. And reading William Finnegan’s surf memoir has been transporting me back to The Endless Summer of 1966 and to that film’s classic poster: the faceless silhouettes of three male surfers against an eye-popping Day-Glo background dominated by a giant yellow sun.

Today, during the first week in what likely will be a long and challenging test of our collective resolve, compassion, and ingenuity, when my age demographic appears to be at greatest risk, it’s strangely comforting to see that something so intertwined with my generation’s collective cultural consciousness–a film about a challenging journey, about risks, about courage and about the danger and beauty of the natural world–remains as vital and relevant today as it did over 50 years ago. Let “the perfect wave” be a metaphor; never stop searching.

Quote of the day: ““You can go right or left, but you can’t very well do both at once.” The Endless Summer


Filed under Uncategorized